CONCEPT
OF
JUSTICE
Prepared by-
Dharmendra Kumar Jangir,
Graduated- Political Science Major,
University of Delhi.
Email- scholardharmendra@gmail.com
PHILOSOPHICAL CONTEXT –
➢ Philosophical context understand justice in Right or Wrong / Good or Bad, which is advocated
mainly by Utilitarian thinkers.
➢ Jeremy Bentham (1748-1832), the exponent of utilitarianism, founded his 'felicific calculus'.
This is concerned with the balancing between the quantities of pleasure and pain, When J.S.
Mill (1806 73) focused on the importance of qualitative differences between different types
of pleasure, it marked a significant departure from the mainstream utilitarianism. This is why
the mainstream utilitarianism proved to be indifferent to the problem of justice. Bentham
advanced the theory of allocation of goods and services without even pretending that it was
theory of justice.
➢ John Rawls (1921-2002), who accords primacy to the problem of justice, is strongly opposed
to utilitarianism. He has pointed to certain situations that satisfy the needs of utilitarianism
but they fail to satisfy the needs of justice.
JUSTICE AS DYNAMIC CONCEPT -
➢ The true meaning of justice should be determined in the light of prevalent social
consciousness, or what D.D. Raphael, in his “Problems of Political Philosophy (1976)”,
described as 'modern consciousness'. We do not claim that this would represent the perfect
idea of justice. Social consciousness is an ever-growing phenomenon, and we should be
prepared to accept new and progressive ideas as far as they are supported by reason.
RELATION BETWEEN LIBERTY, EQUALITY AND JUSTICE -
➢ Ernest Barker (Principles of Social and Political Theory; 1951) has shown that justice
represents a synthesis of the principles of liberty, equality and fraternity. Justice is the thread
which runs through all these values and makes them parts of an integrated whole.
➢ Thus, in the principle of justice, we seek to regulate human relations in society by the principle
of liberty; but liberty is qualified by the principle of equality; and equality is further qualified
by the principle of fraternity.
CLASSICAL THEORIES OF JUSTICE-
PLATO'S THEORY OF JUSTICE-
Plato enumerated four cardinal virtues. Of these, the first three were the befitting virtues for each
social class whereas justice was the befitting virtue of the social order, as shown in the following
chart:
ARISTOTLE'S THEORY OF JUSTICE -
While Plato's theory of justice represents the radical view in that it sought to change the existing social
order of his times, Aristotle's theory of justice embodies the conservative view in favour of
maintaining the existing order, In Aristotle's view, justice was concerned with the regulation of human
relations. He held that the identical notion of justice in the minds of people was responsible for binding
them together, and this was the reason behind the existence of the state.
MODERN VIEW OF JUSTICE
Modern view of justice seeks to transform society itself for the realization of certain human values. In
short, the traditional view of justice has given way to the modem idea of 'social justice'. D.D. Raphael,
in his Problems of Political Philosophy (1976), has quoted:
"The term 'social justice' tends to issue from the mouths of reformers, and to be regarded with
suspicion by those who are satisfied with the existing order."
LEGAL JUSTICE -
The term 'legal justice' is broadly applied in two contexts:
(a) 'justice according to law (formal justice) here we do not question the validity of law but focus on
the principles of administration of justice according to the prevalent law; and
(b) 'law according to justice- here we examine the substance of law itself to ensure that it conforms
to the requirements of justice.
Justice in the legal sphere consists not only in an efficient administration of law, but it postulates that
law itself should embody human values according to the prevailing social consciousness. If law does
not reflect the changing social values, it will turn out to be a dead weight on the wheels of social
progress, only to be discarded in a violent overthrow.
POLITICAL JUSTICE -
The term 'political justice' is sometimes applied in a comprehensive sense so as to embrace the
restructuring of the entire fabric of socio-economic and political relations. For instance, William
Godwin, in his “Essay on Property” (1793), used the term 'political justice' to denote a moral principle
whose object was the 'general good' and which was especially invoked to evolve a genuine system of
property.
Otto Kirchheimer, in his “Political Justice: The Use of Legal Procedure for Political Ends” (1961),
conceived of 'political justice' as 'the search for an ideal in which all members will communicate and
interact with the body-politic to assume its highest perfection'.
In a nutshell, political justice postulates the universal availability of the mechanism for resolving the
conflicting claims of different interests in society.
PROCEDURAL AND SUBSTANTIVE JUSTICE-
Champions of procedural justice hold that it is to determine a just procedure for the allocation of social
advantages, viz. goods and services, opportunities and benefits, power and honours; then its outcome
will automatically be accepted as just. In other words, the allocation resulting from a just procedure
must be treated as just. The notion of procedural justice is closely related to the tradition of
liberalism.
On the contrary, champions of substantive justice argue that the allocation or distribution of social
advantages among various sections of society itself should be just that is the primary issue; the
procedure for making such allocation is a secondary issue, which can be adjusted suitably to meet the
requirements of just distribution.
The defenders of procedural justice insist on laying down rules of the game; it hardly matters as to
who wins or loses in the race, As Norman Barry (An Introduction to Modern Political Theory; 1989)
has aptly illustrated: "Procedural justice is exemplified in competitions, such as races. A fair race is not
one in which the person who wins morally deserves to win but one in which there is no cheating, nobody
jumps the gun or has an unfair advantage through the use of drugs." Accordingly, procedural justice
treats the rules of market economy as the model rules of human behaviour. It holds that the market
mechanism creates necessary conditions for the most efficient use of resources.
The exponents of procedural justice include Herbert Spencer (1820-1903), F.A. Hayek (1899-1992),
Milton Friedman (1912-2006), and Robert Nozick (1938 2002). Besides, John Rawls (1921-2002) has
sought to accommodate the requirements of substantive justice or social justice in his well-drawn
scheme of procedural justice.
Note :- Most of the supporters of Procedural justice are libertarians. So they focus on Market society
where all human beings will be treated equal and given Equal weightage irrespective of their physical/
mental capacity or socio-economic conditions. For them, handicapped should not be given any
assistance.
In contrast, the idea of substantive justice corresponds to the philosophy of socialism. It holds that
the test of justice in society consists in ascertaining whether the poor and the underprivileged have
adequate opportunity to improve their lot.
RETRIBUTIVE AND DISTRIBUTIVE JUSTICE
Retributive justice is primarily concerned with determining punishment for a crime. David Miller has
identified three conditions to ensure justice in the matter of punishment:
1. Retributive justice requires that punishment should be awarded for a crime duly proved,
2. In proportion to the seriousness of crime; and
3. It should neither be too severe nor too lax.
David Miller, in his celebrated work “Social Justice” (1976), has defined the problem of social justice
as that of determining the principles which should be chosen to govern the distribution of wealth,
prestige and other benefits among the members of society'.
The first criterion of Distributive Justice according to Miller, viz. the 'protection of acknowledged
rights' creates a 'hierarchical order'. In this system people have different ranks or positions depending
on how important they are. The very demand for the protection of existing rights and the maintenance
of existing ranks implies the denial of any relief to underprivileged sections.
For instance, Aristotle's defence of slavery was based on the argument that the slave was incapable
of virtue, that he could avail himself of the benefits of virtue only through serving his master.
Defenders of Hindu caste system also declared that serving the castes amounted to penance for the
members of the lowest caste. It is, therefore, impossible to attain the true goal of social justice so
long as we adhere to the principle of 'protection of acknowledged rights.
The second principle, viz. 'distribution according to desert’ which upholds 'market society' system, is
ahead of 'hierarchical order in the sense that it rules out the privilege based on birth, and determines
one's share of social benefits according to one's contribution to the social good. However, it concedes
vast disparities of income and wealth as it enables the owners of private property to multiply their
wealth by hiring the physical and mental capacities of the working classes at competitive rates. In
short, the competitive system tends to widen the gap between rich and poor. Herbert Spencer, the
chief exponent of this principle, sought to apply the law of 'survival of the fittest to social life. He did
not hesitate to rule out any assistance to the incapable, the imprudent and the weak. Thus, Social
Justice can not be achieved through second principle too.
The third principle, viz. 'distribution according to need' is quite laudable, but it has its own difficulties.
It will promote social solidarity only if it could be put into practice. But 'distribution according to need'
is possible only if there is abundance of goods and services. That is only a hypothetical situation. If
this principle is sought to be applied, even partially, in a scarcity situation which is always the case, it
will kill incentive and discourage the talented and energetic people from giving their best to society.
That would further impoverish society and make the application of this principle more difficult.
